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Robocall ruling is victory for Conservatives but shadow of doubt still lingers

A federal court judge presiding over the robocall case ruled on Thursday that the fraudulent calls did not materially affect the results and declined to overturn them.Photo: David Kawai / Ottawa Citizen

Someone is trying to frame the Conservative Party of Canada. Either that, or the party is the victim of a theft, possibly by its own supporters.

Someone, at any rate, hacked into the party’s closely guarded voter database in the closing hours of the 2011 election, using it to call thousands of voters across the country whom the party had previously identified as non-Conservatives, telling them, falsely, that their polling station had been moved. Someone, that is, committed massive electoral fraud, in a way that could only benefit the Conservative party and making use of proprietary party information. But they did it without the party’s knowledge or participation.

Or what else can one conclude from Thursday’s ruling by Federal Court Judge Richard Mosley? On one level, the ruling, in a civil case brought by the Council of Canadians on behalf of voters in six ridings, was a victory for the Conservatives. It found the fraudulent calls did not materially affect the results in those ridings, and declined to overturn them. Moreover, the judge was clear that he was not accusing anyone: “I make no finding that the CPC (or) any CPC candidates … were directly involved in the campaign to mislead voters.” Rather, it was carried out by “a person or persons currently unknown to this Court.”

But as to the question of whether an electoral fraud occurred, of that the judge was in no doubt. He found that the calls were made, by the thousands, to scores of ridings nationwide; that they were not random, but targeted at non-Conservatives; that they commonly presented themselves, falsely, as being from Elections Canada, and provided false information about where to vote. Neither was he in doubt that they prevented at least some voters from getting to the polls, even if their numbers were not enough to be decisive in any riding.

And, troublingly, the judge found that this was no accident, nor the coincidence of a few bad apples with demon dialers. Rather, it was a deliberate and systemic attempt to subvert the democratic process, using resources ordinarily accessible only to a few: namely, the Conservatives’ highly prized Constituency Information Management System (CIMS). The evidence, he writes, suggests “there was an orchestrated effort to suppress votes during the 2011 election campaign by a person or person with access to the CIMS database.”

It would be fair to call this a smoking gun. We just don’t know who fired it. As the judge writes, “there is no evidence to indicate that the use of the CIMS database in this manner was approved or condoned by the CPC.” However, “I am satisfied … that the most likely source of the information used to make the misleading calls was the CIMS database maintained and controlled by the CPC.”

On the face of it, that would suggest a short list of suspects. As the judge notes, “access to CIMS was limited to those who had been approved to have access by the CPC and who had been issued unique passwords.” He cites expert testimony that whoever made the calls would most likely have had, not only access to the database, but also “the financial resources to contract voice and automated service providers to make such calls,” and “the authority to make such decisions.”

Unless, of course, they were hacked. If so, these were some skilled hackers. As the judge writes, whoever accessed the database made “elaborate efforts to conceal (their) identity.” In the celebrated case of Pierre Poutine, in the Guelph, Ont. riding that appears to have been ground zero for the campaign, arrangements were made with the Conservatives’ automated call provider via a “burner” (disposable) cellphone, using a bogus name and address, and paid for online through a Saskatchewan-based proxy server using pre-paid credit cards.

rime Minister Stephen Harper responds to a question from the opposition leader during question period in the House of Commons on Parliament Hill in Ottawa on Wednesday, May 29, 2013.

Now, it’s always possible the judge has it wrong. Maybe there was no attempt to deceive. Maybe the people who reported having received such calls to Elections Canada were all lying, or mistaken; maybe the callers could have known who to call without having access to CIMS; maybe it’s all just a misunderstanding. But having heard the evidence the judge did not think so, and the likelihood of a wholly innocent explanation at this point seems vanishingly slim. This was fraud, and fraud on the grand scale.

And while the judge did not find there was sufficient evidence to conclude the fraud affected the election results, that does not mean there was no evidence. In four of the six ridings, a poll conducted by Frank Graves of Ekos Research found the number of those who said they were prevented from voting by such bogus calls exceeded the winner’s margin of victory. Not conclusive, to be sure, but disturbing.

Most disturbing of all is the Conservatives’ response. The judge is at his most scathing in describing the party’s determined efforts to, as he writes, “block these proceedings by any means.” Party lawyers engaged in “trench warfare in an effort to prevent this case from coming to a hearing on the merits,” raising a series of dubious procedural objections “in transparent attempts to derail this case.” Indeed, “despite the obvious public interest in getting to the bottom of the allegations, the CPC made little effort to assist with the investigation at the outset despite early requests,” even while the election was under way.

None of which proves anything. But it raises the same question that has been cropping up elsewhere of late: Is this the behaviour of people who have nothing to hide?

A National Post original, Andrew Coyne's journalism career has also included positions with Maclean's, the Globe and Mail and the Southam newspaper chain. In addition, he has contributed to a wide range... read more of other publications including The New York Times, The Wall Street Journal, National Review, Time and Saturday Night. Coyne is also a long-time member of the CBC’s popular At Issue panel on The National.View author's profile